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Regulations under the EU (Withdrawal) Act 2018 - Lords Committee sets out criteria for “sifting” procedure

The House of Lords Secondary Legislation Scrutiny Committee (SLSC) has today set out how it will approach its role as sifting committee for regulations introduced under the EU (Withdrawal) Act 2018.

The Committee will have the power in the Lords to recommend that instruments proposed by Ministers in the negative form – which can come into force without a debate in Parliament – should instead be affirmative instruments, meaning a debate is required before they could come into force.

In a report published today the Committee says that its starting point will be to apply an overarching test, based on its existing ground for reporting regulations that are “politically or legally important”.  In looking at proposed negative instruments under the 2018 Act, it will consider whether the subject matter of the instrument and the scope of any policy change effected by it are of such significance that the House would expect to debate it.

The Committee also lists a range of policy matters which may guide its decision on whether to recommend that an instrument should be upgraded to the affirmative procedure.

In setting out its working arrangements, the Committee stresses the need for Government to manage the flow of instruments to Parliament, and to provide good explanatory material alongside them.  It endorses the need for good co-operation with the sifting committee that is being set up in the Commons, and for external interests to make their views known to Parliament in good time for the sifting process.

Lord Trefgarne, Chairman of the Secondary Legislation Scrutiny Committee, said:

“The Committee welcomes this opportunity to contribute to the important task of scrutinising the secondary legislation laid under the EU (Withdrawal) Act 2018, whether as proposed negative instruments or as fully-fledged statutory instruments.  We intend to carry out this scrutiny to the high standards to which the House has become accustomed.

“We look to Government to play their part in ensuring that instruments are presented to Parliament in a well-organised way, and that the material provided in support gives Parliament all the information needed to reach expeditious decisions on those instruments.”

Background on the role of the SLSC on Statutory Instruments under the EU (Withdrawal) Act 2018

The EU (Withdrawal) Act 2018 gives Ministers the power to make regulations to ensure that legal provisions originally based in EU law continue to be effective after the UK has withdrawn from the EU.  In the case of some of these regulations, the Act allows Ministers to choose whether they should be “affirmative” instruments – which would mean that they would have to be debated in Parliament – or “negative” instruments – which can come into force without being debated.

The 2018 Act also contains a “Parliamentary sifting mechanism” for these regulations.  This means that committees in both Houses can make a recommendation that a proposed negative instrument should be upgraded to an affirmative instrument.

Ministers will not be obliged to accept such a recommendation, but the Government have indicated that, if the sifting committees of both Houses made the same recommendation, they would expect it to be accepted by the Minister.

The long-established role of the Secondary Legislation Scrutiny Committee (SLSC) is to advise the House of Lords on its scrutiny of all statutory instruments subject to Parliamentary procedure.  The House has agreed that the SLSC should also take on the role of sifting committee in relation to instruments under the 2018 Act.

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